Wheeler v. Globe & Rutgers Fire Ins. Co. Of

• Decision Date: 06 August 1923
• Docket Number: (No. 11287.)
• Citation: 118 S.E. 609
• Court: South Carolina Supreme Court
• Parties: WHEELER. v. GLOBE & RUTGERS FIRE INS. CO. OF CITY OF NEW YORK.

118 S.E. 609

WHEELER.

v.GLOBE & RUTGERS FIRE INS. CO. OFCITY OF NEW YORK.

(No. 11287.)

Supreme Court of South Carolina.

Aug. 6, 1923.

[Ed. Note.—For other definitions, see Words and Phraees, First and Second Series, Loss.]

Cothran, J., dissenting.

Appeal from Common Pleas Circuit Court of Marion County; W. C. McLain, Special Judge.

Action by J. L. Wheeler against the Globe & Rutgers Fire Insurance Company of the city of New York.Judgment for plaintiff, and defendant appeals.Affirmed.

James W. Johnson, of Marion, for appellant.

M. C. Woods, of Marion, for respondent.

WATTS, J. The "Case" contains the following statement:

"This action was instituted on January 15, 1921, upon a policy of accident insurance issued by defendant to plaintiff covering a Packard automobile.The complaint alleged that while the automobile was being transported across Great Pee Dee river at Allison's Ferry on a flat boat, the end of the flat boat broke off and the boat began to sink, and precipitated the automobile into the river, to its dam age $1,617.21.The defendant set up: First, a general denial.Second, it alleged that the only perils the automobile was insured against, applicable to the facts of this case, were: 'While (the automobile was) being transported in any conveyance by land or water, the stranding, sinking, collision, burning or derailment of such conveyance, including general average and salvage charges for which the assured is legally liable, ' and that the damage to the ear was not occasioned by any of these things, but, on the contrary the cause of the accident was the unskillful and negligent driving of the automobile off of the flat boat and into the Great Pee Dee river, by the defendant or his agent, while said flat boat was stationary and securely tied at its mooring on the river bank.

"The case was tried at the December term of court1922, before a jury, who rendered a verdict in favor of plaintiff for the amount claimed, to wit, $1,838.26.Judgment was entered upon the verdict and within 10 days thereafter notice of appeal was served."

At the close of plaintiffs testimony defendant moved for a nonsuit on the ground:

"That the defendant insured the plaintiff against direct loss or damage to his automobile only while being transported in any conveyance by land or water; that the entire proof shows that the car was not being transported when damaged and therefore the plaintiff cannot recover."

This motion was refused.At the close of all the testimony in the casedefendant moved for a directed verdict on the grounds:

"(1) That the only provisions of the policy under which plaintiff can claim in this action provide that the defendant insured the plaintiff against direct loss or damage to his automobile only 'while being transported in any conveyance by land or water, the stranding, sinking, collision, burning or derailment of such conveyance, including general average and salvage charges for which the assured is legally liable'; that all the evidence offered in the case showed that the damage in. question was not done 'while (the automobile was) being transported in any conveyance by land or water, the stranding, sinking, collision, burning or derailment of such conveyance, including general average and salvage charges for which the assured is legally liable, ' but was due to some one driving plaintiff's automobile into the river while the ferry boat was moored to the shore.

"(2) On the further ground stated in plaintiff's motion for a nonsuit.

"(3) On the further ground that plaintiff has failed to prove that the damage to his car was occasioned by either the stranding or sinking of the flat, and he cannot, therefore, recover."

After entry of judgment, defendant appealed and by seven exceptions imputes error.At the hearing by this courtappellant's counsel announced that he did not press the seventh exception.

Exceptions 1 and 2 complain of error in notgranting a nonsuit and in not directing a verdict as asked for.

Exceptions 3 and 4 complain of error in his honor's not construing the contract, and in his holding that it was ambiguous, and in submitting it to the jury, and in his charge to the jury in reference to how it was to be construed.

Exceptions 5 and 6 complain of error in refusing to charge the jury defendant's requests 1 and 2.

The evidence shows that the car was injured while the boat was tied to the bank; the driver of the car was attempting to drive the car on the boat when the accident occurred.The car could not have been lifted on the boat.The proper way to get it on the boat was to drive it on, and in driving it on it was being transported.

When a car reaches a ferry, the usual way to get it on the boat is to drive it on, and then it is ferried across the stream, and when it reaches the opposite bank the usual way Is to drive off of the ferryboat.

The driving on the ferryboat and driving off is transporting the car.

Receiving and landing automobiles and passengers by a ferryboat is incident to their transportation.The accident to the car, in this case, occurred while the driver of the car was attempting to get it on the boat for the purpose of being ferried across the river, and landed on the other side of the river.The car was being transported according to the true intent and meaning of the terms of the policy, and his honor was right in not granting a nonsuit, or directing a verdict, as asked for by the defendant.

Even though Bryan was negligent in loading the car, that would not defeat plaintiff's recovery.There is no provision in the policy that excepts from the risk accidents due to insured's negligence or that of his servants."The contract evidenced by a policy of accident insurance is entered into by the insured for the purpose of obtaining protection in case of accidental injuries, whether or not they result from thoughtlessness, carelessness, or negligence; and it is accordingly well settled that it is no defense to an action on such policy that the negligence of the insured caused or contributed to the injury, unless of course the policy expressly excepts from the risk accidents due to insured's negligence.1 Corpus Juris, 487."

We do not think his honor was in error in holding the contract was ambiguous, as complained of, and in submitting the question to the jury.He charged the law correctly applicable thereto.

As to accident insurance the rule is stated in 1 Corpus Juris, 414:

"In case there is any ambiguity in the policy, the rule is that all provisions, conditions, or exceptions which in any way tend to work a forfeiture of the policy or limit or defeat liability thereunder, should be construed most strongly against those for whose benefit they are inserted, and most favorably toward those against whom they are meant to operate, and this rule is applicable to purely benefit accident policies as well as to the ordinary accident policy.Accordingly the court will adopt the construction most favorable to the insured when a doubt arises in respect to the application, exceptions to or limitations of liability, or clauses creating a forfeiture or relating to matters subsequent to the attaching of the liability, the rule being specially applicable to the latter."

As a general rule, contracts are to be construed by the court; but where a contract is not clear, or is ambiguous and capable of one or more constructions, what the parties really intended, as a matter of fact, should be submitted to a jury.We see no error in his honor's refusal to charge defendant's request as asked for.

All exceptions are overruled, and judgment affirmed.

FRASER and MARION, JJ., concur.

GARY, C. J., did not sit.

COTHRAN, J. (dissenting).Action upon a policy of insurance covering loss or damage to an automobile.The plaintiff had a verdict for the full amount claimed, and the defendant appeals.

The accident which resulted in damage to the automobile occurred under peculiar circumstances.

The plaintiff with a party of ladies was riding in his car en route from Marion to Allison's Mill, on the opposite side of Great Pee Dee river, in Florence county; there was a ferry across the river near the mill.When the plaintiff drove up to the river he had a bad tire.He decided to leave the car, cross the river in the flat boat, go to the mill, get dinner, and return to the point where the car was left, and in the meantime to send one of the men at the mill across the river to fix the tire.He testified:

"When I got over I sent Mr. James O'Bryan over to the Marion side of the river with instructions to change a tire on the car.He was not instructed to put it on the flat and bring it over.He was sent over to change a tire.I did not instruct him to put it on the flat and bring it over; I' did not instruct anybody to do that.* * * That he told the ferryman: '1 am not in a hurry; I am not going to take the car over.' "

The man O'Bryan was not examined as a witness, but the ferryman, Furches, testified that when the plaintiff drove up to the river, he(the ferryman) was fixing the landing, and the plaintiff said:

"It is all right.I am not going to carry my car over anyway.I will carry these ladies over and leave the car here.There is...